see whether retention of stridhan by the husband or any other family
members is a continuing offence or not. There can be no dispute that
wife can file a suit for realization of the stridhan but it does not debar
her to lodge a criminal complaint for criminal breach of trust. We
must state that was the situation before the 2005 Act came into force.
In the 2005 Act, the definition of “aggrieved person” clearly postulates
about the status of any woman who has been subjected to domestic violence
as defined under Section 3 of the said Act. “Economic abuse”
as it has been defined in Section 3(iv) of the said Act has a large can-
vass. Section 12, relevant portion of which have been reproduced
hereinbefore, provides for procedure for obtaining orders of reliefs. It
has been held in Inderjit Singh Grewal (supra) that Section 498 of
the Code of Criminal Procedure applies to the said case under the
2005 Act as envisaged under Sections 28 and 32 of the said Act read
with Rule 15(6) of the Protection of Women from Domestic Violence
Rules, 2006. We need not advert to the same as we are of the considered
opinion that as long as the status of the aggrieved person remains
and stridhan remains in the custody of the husband, the wife can always
put forth her claim under Section 12 of the 2005 Act. We are disposed
to think so as the status between the parties is not severed because
of the decree of dissolution of marriage. The concept of “continuing
offence” gets attracted from the date of deprivation of stridhan, for
neither the husband nor any other family members can have any right
over the stridhan and they remain the custodians. For the purpose of
the 2005 Act, she can submit an application to the Protection Officer
for one or more of the reliefs under the 2005 Act. In the present case,
the wife had submitted the application on 22.05.2010 and the said authority
had forwarded the same on 01.06.2010. In the application, the
wife had mentioned that the husband had stopped payment of monthly
maintenance from January 2010 and, therefore, she had been compelled
to file the application for stridhan. Regard being had to the said
concept of “continuing offence” and the demands made, we are disposed
to think that the application was not barred by limitation and
the courts below as well as the High Court had fallen into a grave error
by dismissing the application being barred by limitation.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1545 OF 2015
(@ SLP(Crl) No. 10223 OF 2014)
Krishna Bhatacharjee .
V
Sarathi Choudhury and Anr.
Dated;November 20, 2015
2. The appellant having lost the battle for getting her Stridhan back
from her husband, the first respondent herein, before the learned
Magistrate on the ground that the claim preferred under Section 12 of
the Protection of Women from Domestic Violence Act, 2005 (for short,
‘the 2005 Act’) was not entertainable as she had ceased to be an
“aggrieved person” under Section 2(a) of the 2005 Act and further that
the claim as put forth was barred by limitation; preferred an appeal
before the learned Additional Sessions Judge who concurred with the
view expressed by the learned Magistrate, and being determined to get
her lawful claim, she, despite the repeated non-success, approached
the High Court of Tripura, Agartala in Criminal Revision No. 19 of
2014 with the hope that she will be victorious in the war to get her
own property, but the High Court, as is perceivable, without much
analysis, declined to interfere by passing an order with Spartan
austerity possibly thinking lack of reasoning is equivalent to a
magnificent virtue and that had led the agonised and perturbed wife to
prefer the present appeal, by special leave.
3. Prior to the narration of facts which are essential for adjudication
of this appeal, we may state that the 2005 Act has been legislated, as
its Preamble would reflect, to provide for more effective protection of
the rights of the women guaranteed under the Constitution who are
victims of violence of any kind occurring within the family and for
matters connected therewith or incidental thereto. The 2005 Act is a
detailed Act. The dictionary clause of the 2005 Act, which we shall
advert to slightly at a later stage, is in a broader spectrum. The
definition of “domestic violence” covers a range of violence which takes
within its sweep “economic abuse” and the words “economic abuse”,
as the provision would show, has many a facet.
4. Regard being had to the nature of the legislation, a more
sensitive approach is expected from the courts where under the 2005Page 3
3
Act no relief can be granted, it should never be conceived of but,
before throwing a petition at the threshold on the ground of
maintainability, there has to be an apposite discussion and thorough
deliberation on the issues raised. It should be borne in mind that
helpless and hapless “aggrieved person” under the 2005 Act
approaches the court under the compelling circumstances. It is the
duty of the court to scrutinise the facts from all angles whether a plea
advanced by the respondent to nullify the grievance of the aggrieved
person is really legally sound and correct. The principle “justice to the
cause is equivalent to the salt of ocean” should be kept in mind. The
court of law is bound to uphold the truth which sparkles when justice
is done. Before throwing a petition at the threshold, it is obligatory to
see that the person aggrieved under such a legislation is not faced
with a situation of non-adjudication, for the 2005 Act as we have
stated is a beneficial as well as assertively affirmative enactment for
the realisation of the constitutional rights of women and to ensure
that they do not become victims of any kind of domestic violence.
5. Presently to the narration of the facts. The marriage between the
appellant and the respondent No. 1 was solemnised on 27.11.2005
and they lived as husband and wife. As the allegations proceed, there
was demand of dowry by the husband including his relatives and,
demands not being satisfied, the appellant was driven out from thePage 4
4
matrimonial home. However, due to intervention of the elderly people
of the locality, there was some kind of conciliation as a consequence of
which both the husband and the wife stayed in a rented house for two
months. With the efflux of time, the husband filed a petition seeking
judicial separation before the Family Court and eventually the said
prayer was granted by the learned Judge, Family Court. After the
judicial separation, on 22.5.2010 the appellant filed an application
under Section 12 of the 2005 Act before the Child Development
Protection Officer (CDPO), O/O the District Inspector, Social Welfare
& Social Education, A.D. Nagar, Agartala, Tripura West seeking
necessary help as per the provisions contained in the 2005 Act. She
sought seizure of Stridhan articles from the possession of the
husband. The application which was made before the CDPO was
forwarded by the said authority to the learned Chief Judicial
Magistrate, Agartala Sadar, West Tripura by letter dated 1.6.2010.
The learned Magistrate issued notice to the respondent who filed his
written objections on 14.2.2011.
6. Before the learned Magistrate it was contended by the respondent
that the application preferred by the wife was barred by limitation and
that she could not have raised claim as regards Stridhan after the decree
of judicial separation passed by the competent court. The learned
Magistrate taking into consideration the admitted fact that respondentPage 5
5
and the appellant had entered into wedlock treated her as an “aggrieved
person”, but opined that no “domestic relationship” as defined
under Section 2(f) of the 2005 Act existed between the parties and,
therefore, wife was not entitled to file the application under Section 12
of the 2005 Act. The learned Magistrate came to hold that though the
parties had not been divorced but the decree of judicial separation
would be an impediment for entertaining the application and being of
this view, he opined that no domestic relationship subsisted under the
2005 Act and hence, no relief could be granted. Be it stated here that
before the learned Magistrate, apart from herself, the appellant examined
three witnesses and the husband had examined himself as DW-1.
The learned Magistrate while dealing with the maintainability of the
petition had noted the contentions of the parties as regards merits,
but has really not recorded any finding thereon.
7. The aggrieved wife preferred criminal appeal No. 6(1) of 2014
which has been decided by the learned Additional Sessions Judge,
Agartala holding, inter alia, that the object of the 2005 Act is primarily
to give immediate relief to the victims; that as per the decision of this
Court in Inderjit Singh Grewal v. State of Punjab1
that Section 468
of the Code of Criminal Procedure applies to the proceedings under the
1
(2011) 12 SCC 588Page 6
6
2005 Act and, therefore, her application was barred by time. Being of
this view, the appellate court dismissed the appeal.
8. On a revision being preferred, the High Court, as is demonstrable
from the impugned order, after referring to the decision in Inderjit
Singh Grewal (supra), has stated that the wife had filed a criminal
case under Section 498(A) IPC in the year 2006 and the husband had
obtained a decree of judicial separation in 2008, and hence, the proceedings
under the 2005 Act was barred by limitation. That apart, it
has also in a way expressed the view that the proceedings under the
2005 Act was not maintainable.
9. In our prefatory note, we have stated about the need of sensitive
approach to these kinds of cases. There can be erroneous perception
of law, but as we find, neither the learned Magistrate nor the appellate
court nor the High Court has made any effort to understand and appreciate
the stand of the appellant. Such type of cases and at such
stage should not travel to this Court. We are compelled to say so as we
are of the considered opinion that had the appellate court and the
High Court been more vigilant, in all possibility, there could have been
adjudication on merits. Be that as it may.
10. The facts that we have enumerated as regards the “status of the
parties”, “judicial separation” and “the claim for Stridhan” are not in
dispute. Regard being had to the undisputed facts, it is necessary toPage 7
7
appreciate the scheme of the 2005 Act. Section 2(a) defines “aggrieved
person” which means any woman who is, or has been, in a domestic
relationship with the respondent and who alleges to have been subjected
to any act of domestic violence by the respondent. Section 2(f)
defines “domestic relationship” which means a relationship between
two persons who live or have, at any point of time, lived together in a
shared household, when they are related by consanguinity, marriage,
or through a relationship in the nature of marriage, adoption or are
family members living together as a joint family. Section 2(g) defines
the term “domestic violence” which has been assigned and given the
same meaning as in Section 3. Sub-section (iv) of Section 3 deals
with “economic abuse”. As in the facts at hand, we are concerned with
the “economic abuse”, we reproduce Section 3(iv) which reads as follows:-
“Section 3. Definition of domestic violence.
(iv) "economic abuse" includes-
(a) deprivation of all or any economic or financial resources
to which the aggrieved person is entitled under any law or
custom whether payable under an order of a court or otherwise
or which the aggrieved person requires out of necessity
including, but not limited to, household necessities for the
aggrieved person and her children, if any, stridhan, property,
jointly or separately owned by the aggrieved person,
payment of rental related to the shared household and
maintenance;
(b) disposal of household effects, any alienation of assets
whether movable or immovable, valuables, shares, securi-Page 8
8
ties, bonds and the like or other property in which the aggrieved
person has an interest or is entitled to use by virtue
of the domestic relationship or which may be reasonably required
by the aggrieved person or her children or her stridhan
or any other property jointly or separately held by the
aggrieved person; and
(c) prohibition or restriction to continued access to resources
or facilities which the aggrieved person is entitled
to use or enjoy by virtue of the domestic relationship including
access to the shared household.
Explanation II.-For the purpose of determining whether any
act, omission, commission or conduct of the respondent
constitutes "domestic violence" under this section, the overall
facts and circumstances of the case shall be taken into
consideration.”
11. Section 8(1) empowers the State Government to appoint such
number of Protection Officers in each district as it may consider necessary
and also to notify the area or areas within which a Protection
Officer shall exercise the powers and perform the duties conferred on
him by or under the 2005 Act. The provision, as is manifest, is
mandatory and the State Government is under the legal obligation to
appoint such Protection Officers. Section 12 deals with application to
Magistrate. Sub-sections (1) and (2) being relevant are reproduced below:-
“Section 12. Application to Magistrate.-(1) An aggrieved
person or a Protection Officer or any other person on behalf
of the aggrieved person may present an application to the
Magistrate seeking one or more reliefs under this Act: Provided
that before passing any order on such application, the
Magistrate shall take into consideration any domestic inci-Page 9
9
dent report received by him from the Protection Officer or
the service provider.
(2) The relief sought for under sub-section (1) may include a
relief for issuance of an order for payment of compensation
or damages without prejudice to the right of such person to
institute a suit for compensation or damages for the injuries
caused by the acts of domestic violence committed by
the respondent: Provided that where a decree for any
amount as compensation or damages has been passed by
any court in favour of the aggrieved person, the amount, if
any, paid or payable in pursuance of the order made by the
Magistrate under this Act shall be set off against the
amount payable under such decree and the decree shall,
notwithstanding anything contained in the Code of Civil
Procedure, 1908 (5 of 1908), or any other law for the time
being in force, be executable for the balance amount, if any,
left after such set off.”
12. Section 18 deals with passing of protection orders by the Magistrate.
Section 19 deals with the residence orders and Section 20 deals
with monetary reliefs. Section 28 deals with procedure and stipulates
that all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and
offences under Section 31 shall be governed by the provisions of the
Code of Criminal Procedure, 1973. Section 36 lays down that the provisions
of the 2005 Act shall be in addition to, and not in derogation of
the provisions of any other law, for the time being in force.
13. Having scanned the anatomy of the 2005 Act, we may now refer
to a few decisions of this Courts that have dealt with the provisions of
the 2005 Act. In V.D. Bhanot v. Savita Bhanot2
the question arose
whether the provisions of the 2005 Act can be made applicable in rela-
2
(2012) 3 SCC 183Page 10
10
tion to an incident that had occurred prior to the coming into force of
the said Act. Be it noted, the High Court had rejected the stand of the
respondent therein that the provisions of the 2005 Act cannot be invoked
if the occurrence had taken place prior to the coming into force
of the 2005 Act. This Court while dealing with the same referred to
the decision rendered in the High Court which after considering the
constitutional safeguards under Article 21 of the Constitution vis-à-vis
the provisions of Sections 31 and 33 of the 2005 Act and after examining
the Statement of Objects and Reasons for the enactment of the
2005 Act, had held that it was with the view of protecting the rights of
women under Articles 14, 15 and 21 of the Constitution that Parliament
enacted the 2005 Act in order to provide for some effective protection
of rights guaranteed under the Constitution to women, who are
victims of any kind of violence occurring within the family and matters
connected therewith and incidental thereto, and to provide an efficient
and expeditious civil remedy to them and further that a petition under
the provisions of the 2005 Act is maintainable even if the acts of domestic
violence had been committed prior to the coming into force of
the said Act, notwithstanding the fact that in the past she had lived
together with her husband in a shared household, but was no more
living with him, at the time when the Act came into force. After analyz-Page 11
11
ing the verdict of the High Court, the Court concurred with the view
expressed by the High Court by stating thus:-
“We agree with the view expressed by the High Court that in
looking into a complaint under Section 12 of the PWD Act,
2005, the conduct of the parties even prior to the coming
into force of the PWD Act, could be taken into consideration
while passing an order under Sections 18, 19 and 20
thereof. In our view, the Delhi High Court has also rightly
held that even if a wife, who had shared a household in the
past, but was no longer doing so when the Act came into
force, would still be entitled to the protection of the PWD
Act, 2005.”
14. In Saraswathy v. Babu3
a two-Judge Bench, after referring to
the decision in V.D. Bhanot (supra), reiterated the principle. It has
been held therein:-
“We are of the view that the act of the respondent husband
squarely comes within the ambit of Section 3 of the DVA,
2005, which defines “domestic violence” in wide terms. The
High Court made an apparent error in holding that the conduct
of the parties prior to the coming into force of the DVA,
2005 cannot be taken into consideration while passing an
order. This is a case where the respondent husband has not
complied with the order and direction passed by the trial
court and the appellate court. He also misleads the Court
by giving wrong statement before the High Court in the contempt
petition filed by the appellant wife. The appellant wife
having being harassed since 2000 is entitled for protection
order and residence order under Sections 18 and 19 of the
DVA, 2005 along with the maintenance as allowed by the
trial court under Section 20(1)(d) of the DVA, 2005. Apart
from these reliefs, she is also entitled for compensation and
damages for the injuries, including mental torture and emotional
distress, caused by the acts of domestic violence committed
by the respondent husband. Therefore, in addition to
the reliefs granted by the courts below, we are of the view
that the appellant wife should be compensated by the re-
3
(2014) 3 SCC 712Page 12
12
spondent husband. Hence, the respondent is hereby directed
to pay compensation and damages to the extent of Rs
5,00,000 in favour of the appellant wife.”
15. In the instant case, as has been indicated earlier, the courts
below as well as the High Court have referred to the decision in
Inderjit Singh Grewal (supra). The said case has to be understood
regard being had to the factual exposè therein. The Court had referred
to the decision in D. Velusamy v. D. Patchaiammal4
wherein this
Court had considered the expression “domestic relationship” under
Section 2(f) of the Act and judgment in Savitaben Somabhai Bhatiya
v. State of Gujarat5
and distinguished the said judgments as those
cases related to live-in relationship without marriage. The Court
analyzing the earlier judgments opined that the couple must hold
themselves out to society as being akin to spouses in addition to
fulfilling all other requisite conditions for a valid marriage. The said
judgments were distinguished on facts as those cases related to live-in
relationship without marriage. The Court opined that the parties
therein had got married and the decree of the civil court for divorce
subsisted and that apart a suit to declare the said judgment and
decree as a nullity was still pending consideration before the
competent court. In that background, the Court ruled that:-
4
(2010) 10 SCC 469
5
(2005) 3 SCC 636Page 13
13
“In the facts and circumstances of the case, the submission
made on behalf of Respondent 2 that the judgment and decree
of a civil court granting divorce is null and void and
they continued to be the husband and wife, cannot be
taken note of at this stage unless the suit filed by Respondent
2 to declare the said judgment and decree dated
20-3-2008 is decided in her favour. In view thereof, the evidence
adduced by her particularly the record of the telephone
calls, photographs attending a wedding together and
her signatures in school diary of the child cannot be taken
into consideration so long as the judgment and decree of
the civil court subsists. On a similar footing, the contention
advanced by her counsel that even after the decree of divorce,
they continued to live together as husband and wife
and therefore the complaint under the 2005 Act is maintainable,
is not worth acceptance at this stage.”
[Emphasis supplied]
16. It may be noted that a submission was advanced by the wife with
regard to the applicability of Section 468 CrPC. While dealing with the
submission on the issue of limitation, the Court opined:-
“...... in view of the provisions of Section 468 CrPC, that the
complaint could be filed only within a period of one year from
the date of the incident seem to be preponderous in view of the
provisions of Sections 28 and 32 of the 2005 Act read with
Rule 15(6) of the Protection of Women from Domestic Violence
Rules, 2006 which make the provisions of CrPC applicable and
stand fortified by the judgments of this Court in Japani Sahoo
v. Chandra Sekhar Mohanty, (2007) 7 SCC 394, and NOIDA
Entrepreneurs Assn. v. NOIDA, (2011) 6 SCC 508.”
17. As it appears, the High Court has referred to the same but the
same has really not been adverted. In fact, it is not necessary to
advert to the said aspect in the present case.
18. The core issue that is requisite to be addressed is whether thePage 14
14
appellant has ceased to be an “aggrieved person” because of the decree
of judicial separation. Once the decree of divorce is passed, the status
of the parties becomes different, but that is not so when there is a
decree for judicial separation. A three-Judge Bench in Jeet Singh
and Others Vs. State of U.P. and Others6
though in a different
context, adverted to the concept of judicial separation and ruled that
the judicial separation creates rights and obligations. A decree or an
order for judicial separation permits the parties to live apart. There
would be no obligation for either party to cohabit with the other.
Mutual rights and obligations arising out of a marriage are suspended.
The decree however, does not sever or dissolve the marriage. It affords
an opportunity for reconciliation and adjustment. Though judicial
separation after a certain period may become a ground for divorce, it is
not necessary and the parties are not bound to have recourse to that
remedy and the parties can live keeping their status as wife and
husband till their lifetime.
19. In this regard, we may fruitfully refer to the authority in Hirachand
Srinivas Managaonkar v. Sunanda7
wherein the issue that
arose for determination was whether the husband who had filed a petition
seeking dissolution of the marriage by a decree of divorce under
Section 13(1-A)(i) of the Hindu Marriage Act, 1955 can be declined re-
6
(1993) 1 SCC 325
7
(2001) 4 SCC 125Page 15
15
lief on the ground that he had failed to pay maintenance for his wife
and daughter despite an order of the court. The husband was appellant
before this Court and had filed an application under Section 10 of
the Hindu Marriage Act, 1955 for seeking judicial separation on the
ground of adultery on the part of the appellant. Thereafter, the appellant
presented the petition for dissolution of marriage by decree of divorce
on the ground that there has been no resumption of cohabitation
as between the parties to the marriage for a period of more than
one year after passing of the decree for judicial separation. The stand
of the wife was that the appellant having failed to pay the maintenance
as ordered by the court, the petition for divorce filed by the husband
was liable to be rejected inasmuch he was trying to get advantage of
his own wrong for getting the relief. The High Court accepted the plea
of the wife and refused to grant the prayer of the appellant seeking divorce.
It was contended before this Court that the only condition for
getting divorce under Section 13(1-A)(i) of the Hindu Marriage Act,
1955 is that there has been no resumption of cohabitation between
the parties to the marriage for a period of one year or upwards after
the passing of the decree for judicial separation in a proceeding to
which both the spouses are parties. It was urged that if the said condition
is satisfied the court is required to pass a decree of divorce. On
behalf of the wife, the said submissions were resisted on the score thatPage 16
16
the husband had been living in continuous adultery even after passing
of the decree of judicial separation and had reasonably failed to maintain
the wife and daughter. The Court proceeded to analyse Section
13(1-A)(i) of the Hindu Marriage Act, 1955. Analysing the provisions at
length and speaking about judicial separation, it expressed that after
the decree for judicial separation was passed on the petition filed by
the wife it was the duty of both the spouses to do their part for cohabitation.
The husband was expected to act as a dutiful husband towards
the wife and the wife was to act as a devoted wife towards the husband.
If this concept of both the spouses making sincere contribution
for the purpose of successful cohabitation after a judicial separation is
ordered then it can reasonably be said that in the facts and circumstances
of the case the husband in refusing to pay maintenance to the
wife failed to act as a husband. Thereby he committed a “wrong”
within the meaning of Section 23 of the Act. Therefore, the High Court
was justified in declining to allow the prayer of the husband for dissolution
of the marriage by divorce under Section 13(1-A) of the Act.
20. And, the Court further stated thus:-
“... The effect of the decree is that certain mutual rights and
obligations arising from the marriage are as it were suspended
and the rights and duties prescribed in the decree
are substituted therefor. The decree for judicial separation
does not sever or dissolve the marriage tie which continues
to subsist. It affords an opportunity to the spouse for reconciliation
and readjustment. The decree may fall by a concili-Page 17
17
ation of the parties in which case the rights of the respective
parties which float from the marriage and were suspended
are restored. Therefore the impression that Section
10(2) vests a right in the petitioner to get the decree of divorce
notwithstanding the fact that he has not made any attempt
for cohabitation with the respondent and has even
acted in a manner to thwart any move for cohabitation does
not flow from a reasonable interpretation of the statutory
provisions. At the cost of repetition it may be stated here
that the object and purpose of the Act is to maintain the
marital relationship between the spouses and not to encourage
snapping of such relationship.”
21. It is interesting to note that an issue arose whether matrimonial
offence of adultery had exhausted itself when the decree for judicial
separation was granted and, therefore, it cannot be said that it is a
new fact or circumstance amounting to wrong which will stand as an
obstacle in the way of the husband to obtain the relief which he claims
in the divorce proceedings. Be it stated that reliance was placed on
the decision of Gujarat High Court in Bai Mani v. Jayantilal
Dahyabhai8
. This Court did not accept the contention by holding that
living in adultery on the part of the husband is a continuing matrimonial
offence, and it does not get frozen or wiped out merely on passing
of a decree for judicial separation which merely suspends certain duties
and obligations of the spouses in connection with their marriage
and does not snap the matrimonial tie. The Court ruled that the decision
of the Gujarat High Court does not lay down the correct position
of law. The Court approved the principle stated by the Madras High
8 AIR 1979 Guj 209Page 18
18
Court in the case of Soundarammal v. Sundara Mahalinga Nadar
9
in which a Single Judge had taken the view that the husband who
continued to live in adultery even after decree at the instance of the
wife could not succeed in a petition seeking decree for divorce and that
Section 23(1)(a) barred the relief.
22. In view of the aforesaid pronouncement, it is quite clear that
there is a distinction between a decree for divorce and decree of judicial
separation; in the former, there is a severance of status and the
parties do not remain as husband and wife, whereas in the later, the
relationship between husband and wife continues and the legal relationship
continues as it has not been snapped. Thus understood, the
finding recorded by the courts below which have been concurred by
the High Court that the parties having been judicial separated, the appellant
wife has ceased to be an “aggrieved person” is wholly unsustainable.
23. The next issue that arises for consideration is the issue of limitation.
In the application preferred by the wife, she was claiming to get
back her stridhan. Stridhan has been described as saudayika by Sir
Gooroodas Banerjee in “Hindu Law of Marriage and Stridhan” which is
as follows:-
“First, take the case of property obtained by gift. Gifts of affectionate
kindred, which are known by the name of sau-
9 AIR 1980 Mad 294Page 19
19
dayika stridhan, constitute a woman’s absolute property,
which she has at all times independent power to alienate,
and over which her husband has only a qualified right,
namely, the right of use in times of distress.”
24. The said passage, be it noted, has been quoted Pratibha Rani v.
Suraj Kumar and Another10. In the said case, the majority referred
to the stridhan as described in “Hindu Law” by N.R. Raghavachariar
and Maine’s “Treatise on Hindu Law”. The Court after analyzing the
classical texts opined that:-
”It is, therefore, manifest that the position of stridhan of a
Hindu married woman’s property during coverture is absolutely
clear and unambiguous; she is the absolute owner of
such property and can deal with it in any manner she likes
— she may spend the whole of it or give it away at her own
pleasure by gift or will without any reference to her husband.
Ordinarily, the husband has no right or interest in it
with the sole exception that in times of extreme distress, as
in famine, illness or the like, the husband can utilise it but
he is morally bound to restore it or its value when he is able
to do so. It may be further noted that this right is purely
personal to the husband and the property so received by
him in marriage cannot be proceeded against even in execution
of a decree for debt.”
25. In the said case, the Court ruled:-
“... a pure and simple entrustment of stridhan without creating
any rights in the husband excepting putting the articles
in his possession does not entitle him to use the same
to the detriment of his wife without her consent. The husband
has no justification for not returning the said articles
as and when demanded by the wife nor can he burden her
with losses of business by using the said property which
was never intended by her while entrusting possession of
stridhan. On the allegations in the complaint, the husband
is no more and no less than a pure and simple custodian
10 (1985) 2 SCC 370Page 20
20
acting on behalf of his wife and if he diverts the entrusted
property elsewhere or for different purposes he takes a clear
risk of prosecution under Section 406 of the IPC. On a parity
of reasoning, it is manifest that the husband, being only
a custodian of the stridhan of his wife, cannot be said to be
in joint possession thereof and thus acquire a joint interest
in the property.”
26. The decision rendered in the said case was referred for a fresh
look by a three-Judge Bench. The three-Judge Bench Rashmi Kumar
(Smt) v. Mahesh Kumar Bhada11 while considering the issue in the
said case, ruled that :-
“9. A woman’s power of disposal, independent of her husband’s
control, is not confined to saudayika but extends to
other properties as well. Devala says: “A woman’s maintenance
(vritti), ornaments, perquisites (sulka), gains (labha),
are her stridhana. She herself has the exclusive right to enjoy
it. Her husband has no right to use it except in
distress….” In N.R. Raghavachariar’s Hindu Law — Principles
and Precedents, (8th Edn.) edited by Prof. S.
Venkataraman, one of the renowned Professors of Hindu
Law para 468 deals with “Definition of Stridhana”. In para
469 dealing with “Sources of acquisition” it is stated that
the sources of acquisition of property in a woman’s possession
are: gifts before marriage, wedding gifts, gifts subsequent
to marriage etc. Para 470 deals with “Gifts to a
maiden”. Para 471 deals with “Wedding gifts” and it is
stated therein that properties gifted at the time of marriage
to the bride, whether by relations or strangers, either Adhiyagni
or Adhyavahanika, are the bride’s stridhana. In
para 481 at page 426, it is stated that ornaments presented
to the bride by her husband or father constitute her Stridhana
property. In para 487 dealing with “powers during
coverture” it is stated that saudayika meaning the gift of affectionate
kindred, includes both Yautaka or gifts received
at the time of marriage as well as its negative Ayautaka. In
respect of such property, whether given by gift or will she is
the absolute owner and can deal with it in any way she
11 (1997) 2 SCC 397Page 21
21
likes. She may spend, sell or give it away at her own pleasure.
10. It is thus clear that the properties gifted to her before
the marriage, at the time of marriage or at the time of giving
farewell or thereafter are her stridhana properties. It is her
absolute property with all rights to dispose at her own pleasure.
He has no control over her stridhana property. Husband
may use it during the time of his distress but nonetheless
he has a moral obligation to restore the same or its
value to his wife. Therefore, stridhana property does not become
a joint property of the wife and the husband and the
husband has no title or independent dominion over the
property as owner thereof.”
27. After so stating the Court proceeded to rule that stridhana property
is the exclusive property of the wife on proof that she entrusted
the property or dominion over the stridhana property to her husband
or any other member of the family, there is no need to establish any
further special agreement to establish that the property was given to
the husband or other member of the family. Further, the Court observed
that it is always a question of fact in each case as to how the
property came to be entrusted to the husband or any other member of
the family by the wife when she left the matrimonial home or was
driven out therefrom. Thereafter, the Court adverted to the concept of
entrustment and eventually concurred with the view in the case of
Pratibha Rani (supra). It is necessary to note here that the question
had arisen whether it is a continuing offence and limitation could begin
to run everyday lost its relevance in the said case, for the Court onPage 22
22
scrutiny came to hold that the complaint preferred by the complainant
for the commission of the criminal breach of trust under Section 406
of the Indian Penal Code was within limitation.
28. Having appreciated the concept of Stridhan, we shall now proceed
to deal with the meaning of “continuing cause of action”. In Raja
Bhadur Singh v. Provident Fund Inspector and Others12 the Court
while dealing with the continuous offence opined that the expression
“continuing offence” is not defined in the Code but that is because the
expressions which do not have a fixed connotation or a static import
are difficult to define. The Court referred to the earlier decision in
State of Bihar v. Deokaran Nenshi13 and reproduced a passage from
the same which is to the following effect:-
“A continuing offence is one which is susceptible of continuance
and is distinguishable from the one which is committed
once and for all. It is one of those offences which arises
out of a failure to obey or comply with a rule or its requirement
and which involves a penalty, the liability for which
continues until the rule or its requirement is obeyed or
complied with. On every occasion that such disobedience or
non-compliance occurs and reoccurs, there is the offence
committed. The distinction between the two kinds of offences
is between an act or omission which constitutes an
offence once and for all and an act or omission which continues,
and therefore, constitutes a fresh offence every time
or occasion on which it continues. In the case of a continuing
offence, there is thus the ingredient of continuance of
the offence which is absent in the case of an offence which
takes place when an act or omission is committed once and
for all.”
12 (1984) 4 SCC 222
13 (1972) 2 SCC 890Page 23
23
29. The Court further observed :-
“This passage shows that apart from saying that a continuing
offence is one which continues and a non-continuing offence
is one which is committed once and for all, the Court
found it difficult to explain as to when an offence can be described
as a continuing offence. Seeing that difficulty, the
Court observed that a few illustrative cases would help to
bring out the distinction between a continuing offence and
a non-continuing offence. The illustrative cases referred to
by the Court are three from England, two from Bombay and
one from Bihar.”
30. Thereafter, the Court referred to the authorities and adverted to
Deokaran Nenshi (supra) and eventually held:-
“The question whether a particular offence is a continuing
offence must necessarily depend upon the language of the
statute which creates that offence, the nature of the offence
and, above all, the purpose which is intended to be
achieved by constituting the particular act as an offence...”
31. Regard being had to the aforesaid statement of law, we have to
see whether retention of stridhan by the husband or any other family
members is a continuing offence or not. There can be no dispute that
wife can file a suit for realization of the stridhan but it does not debar
her to lodge a criminal complaint for criminal breach of trust. We
must state that was the situation before the 2005 Act came into force.
In the 2005 Act, the definition of “aggrieved person” clearly postulates
about the status of any woman who has been subjected to domestic violence
as defined under Section 3 of the said Act. “Economic abuse”
as it has been defined in Section 3(iv) of the said Act has a large can-
vass. Section 12, relevant portion of which have been reproduced
hereinbefore, provides for procedure for obtaining orders of reliefs. It
has been held in Inderjit Singh Grewal (supra) that Section 498 of
the Code of Criminal Procedure applies to the said case under the
2005 Act as envisaged under Sections 28 and 32 of the said Act read
with Rule 15(6) of the Protection of Women from Domestic Violence
Rules, 2006. We need not advert to the same as we are of the considered
opinion that as long as the status of the aggrieved person remains
and stridhan remains in the custody of the husband, the wife can always
put forth her claim under Section 12 of the 2005 Act. We are disposed
to think so as the status between the parties is not severed because
of the decree of dissolution of marriage. The concept of “continuing
offence” gets attracted from the date of deprivation of stridhan, for
neither the husband nor any other family members can have any right
over the stridhan and they remain the custodians. For the purpose of
the 2005 Act, she can submit an application to the Protection Officer
for one or more of the reliefs under the 2005 Act. In the present case,
the wife had submitted the application on 22.05.2010 and the said authority
had forwarded the same on 01.06.2010. In the application, the
wife had mentioned that the husband had stopped payment of monthly
maintenance from January 2010 and, therefore, she had been compelled
to file the application for stridhan. Regard being had to the said
concept of “continuing offence” and the demands made, we are disposed
to think that the application was not barred by limitation and
the courts below as well as the High Court had fallen into a grave error
by dismissing the application being barred by limitation.
32. Consequently, the appeal is allowed and the orders passed by the
High Court and the courts below are set aside. The matter is remitted
to the learned Magistrate to proceed with the application under Section
12 of the 2005 Act on merits.
.............................J.
[Dipak Misra]
..........................., J.
[Prafulla C. Pant]
New Delhi
November 20, 2015
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